Temporary public policy to facilitate access to open work permits for certain foreign nationals, in Canada, whose claims for refugee protection are ineligible to be referred to IRB

Background

Canada’s asylum system has been under considerable strain due to sustained high levels of asylum claimants seeking Canada’s protection, creating pressures at various stages of processing, including for the issuance of work permits. Ensuring timely access to work permits to eligible cohorts to support themselves helps reduce reliance on provincial services.

Some individuals who make asylum claims have their claim determined to be ineligible to be referred to the Refugee Protection Division (RPD) of the Immigration and Refugee Protection Board (IRB). These individuals may, in most cases, be eligible to apply for a Pre-Removal Risk Assessment (PRRA), which considers the risk they may face if removed from Canada. Under the current system, when a person with an ineligible claim is notified that they may make a PRRA application, their removal order is stayed and they may apply for a work permit. Those with ineligible claims who already have a work permit have their work permits cancelled and need to reapply for a work permit once they are notified that they can make a PRRA application.

Recently, the Government has introduced two new ineligibilities in the Immigration and Refugee Protection Act (the Act) to protect the asylum system against sudden increases in claims, alleviate current burdens on the system, and deter people from using the asylum system to bypass regular immigration rules or extend their temporary stay in Canada.

• The “one-year” ineligibility: asylum claims made by people more than one year after they first entered Canada after June 24, 2020, would not be referred to the RPD of the IRB. This would apply to anyone, including workers, students and visitors, regardless of whether they left the country and returned.
• The “14 days” ineligibility: asylum claims made by people who enter Canada irregularly (between ports of entry) from the United States and make a claim 14 or more days after their entry would also not be referred to the RPD.

Individuals whose claims are found to be ineligible under these new ineligibilities may still apply for a PRRA, and would be eligible for a work permit once they are notified that they may apply for a PRRA.

In the short term, with the introduction of the new ineligibilities and the large number of claims that will be subject to the new provisions, there may be a longer delay between the time an individual’s claim is determined ineligible and the time they are notified that they can make a PRRA application, which may result in individuals not being able to apply for a work permit because their removal order is not yet unenforceable (has not yet been stayed). The proposed approach is a transitional public policy that would help make the work permit process for those with ineligible claims more efficient, ensure that they can work in a timely fashion and alleviate burdens on provinces and territories.

Public Policy Considerations

As a transition measure, to ensure timely access to work permits is provided to those with claims ineligible to be referred to the RPD while they await notification that they may apply for a PRRA and therefore their removal order is stayed, this Temporary Public Policy will facilitate the issuance of a work permit to a foreign national upon application for the work permit after the determination that their claim is ineligible to be referred but before they are notified that they may make a PRRA application and their removal order is stayed. Under this Temporary Public Policy, an exemption will also be granted to individuals with claims determined ineligible to be referred to the RPD from having an existing work permit cancelled at the time their removal order becomes enforceable pursuant to s.243.2 of the Regulations. Together, these exemptions will ensure that individuals have access to employment and may support themselves financially, and avoid placing additional pressure on provincial and territorial services and other supports before the PRRA application process is initiated.

I hereby establish, pursuant to my authority under section 25.2 of the Act, that there are sufficient public policy considerations that justify the granting of exemptions from the requirements of the Regulations listed below to foreign nationals who meet the conditions (eligibility requirements) set out below.

Conditions (Eligibility Requirements)

Part 1 – Those with ineligible claims who have applied for a work permit

Based on public policy considerations, delegated officers may grant an exemption from the requirements of the Regulations identified below if:

The foreign national:

1. Has made a claim for refugee protection as required by subsection 99(3) of the Act that has been determined to be ineligible to be referred to the Refugee Protection Division of the Immigration and Refugee Board under s.101(1)(a), (b), (b.1), (b.2), (c), (c.1), (d) or (f) of the Act;
2. Is not ineligible to apply for protection under s.112(2)(a); and
3. Has submitted a work permit application under section 200 of the Regulations.

Provisions of the Regulations for which an exemption may be granted:

To foreign nationals who meet the requirements of Part 1, above:

• Paragraphs 199(a) to (i) of the Regulations – the requirements that a foreign national must meet in order to apply for a work permit after entering Canada.
• Paragraph 200(1)(b) of the Regulations – the requirement for a foreign national to establish that they will leave Canada by the end of the period of authorized for their stay under Division 2 (work permit issuance).
• Paragraph 200(1)(c) of the Regulations – the requirement to be described under this paragraph of the Regulations.

Part 2 – Those with ineligible claims who have an existing work permit

Based on public policy considerations, delegated officers may grant an exemption from the requirements of the Regulations identified below if:

The foreign national:

1. Has made a claim for refugee protection as required by subsection 99(3) of the Act that has been determined to be ineligible to be referred to the Refugee Protection Division of the Immigration and Refugee Board under s.101(1)(a), (b), (b.1), (b.2), (c), (c.1), (d) or (f) of the Act;
2. Is not ineligible to apply for protection under s.112(2)(a); and
3. Is in possession of a work permit under section 200 of the Regulations.

Provisions of the Regulations for which an exemption may be granted:

To foreign nationals who meet the requirements of Part 2, above:

• The requirement in paragraph 243.2(a) of the Regulations that a foreign national’s work permit is cancelled when a removal order made against them becomes enforceable.

Other Admissibility and Selection Criteria

Foreign nationals eligible under this public policy are subject to all other legislative and regulatory obligations and admissibility and selection requirements not exempted under this, or another, public policy.

Effective Date and Expiration

This public policy comes into effect on the day Bill C-12, Strengthening Canada’s Immigration System and Borders Act, receives royal assent. This public policy may be revoked at any time. Applications which were received under this public policy on or after the day it comes into effect until the day the public policy is revoked or expires will be processed under this public policy.